NAROTTAMA PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this revision notice was issued the opposite parties indicating that at the stage of admission, the revision may be finally disposed of. Records of the lower court were called for. Accordingly, the matter is taken up today and is finally disposed of by this order.

(2.) Informant is the petitioner. On 23-7-1985 at about 8.20 A.M. in the morning, petitioner lodged a written report before the Officer-in-charge, Banki Police Station that in the previous mid-night a necklace of his mother was stolen which it was alleged to have been seen by his methsedte have been taken by the accused. At that time two persons were standing in, the courtyard. When his mother raised hue and cry, the villagers of the street ran after them. Brother of the informant caught hold of the accused. At that time, the door of the house where the informant was staying was chained from outside. Mahendra and Patita unchained the door whereupon the informant came out The Naib Sarpanch of the Gram Panchayat Dhaneswar Panda, Ward Member Padhab Panda and others with Binod Panda accosted the accused where the accused agreed to handover the neckless. When at about 6.00 A.M. the informant was coming with the Gram Rakhi to the Police Station, the two brothers of wife of the accused Sikhar and Sudara caused bleeding injury on him by means of an iron rod and a bamboo stick. On the basis of this information, charge sheet was submitted against the accused under section 379, I.P.C. The accused was, however, charged under Section 380 I.P.C. According to the charge sheet II witnesses were examined on behalf of the prosecution and after recording the statement of the accused under Section 313 Cr.P.C. one witness was examined for the defence. The case was thereafter posted for hearing on 22-9-1988 when the matter was posted for argument, learned Public Prosecutor filed an application to summon one Mahendra Rout and Madhab Panda for examination. It was submitted that these two witnesses were present at the time of occurrence and were accordingly material witnesses. On behalf of the accused, objection was raised on the ground that all the material witnesses had already been examined and at the stage of argument the petition had been filed to linger the proceeding. Learned Magistrate perused the record and observed that the two witnesses in no way are material witnesses. Accordingly the application was rejected which order has been assailed in the present revision.

(3.) The order discloses that the learned Public Prosecutor filed the petition for summoning Mahendra Rout and Madhab Panda for examination. The first information report discloses that the two witnesses accosted the accused along with others, who agreed to return back the chain. Learned Public Prosecutor ought to have taken steps for summoning these two witnesses earlier and the application ought to have disclosed why these two witnesses had not been examined. I have no doubt that the learned Public Prosecutor was not remaining vigilant in conducting the prosecution when the trial was conducted. Be that so it may before the judgment was delivered an application was filed indicating the reasons why they are required to be examined. Learned Public Prosecutor could have filed an application for further investigation. It seems, the Investigating Officer was not fully cooperating with the learned Public Prosecutor for taking adequate steps to bring all facts to the record by examination of these two witnesses. In this background when an application was filed for examining the two witnesses under Section 311 I.P.C. I am satisfied that the trial court ought to have accepted the prayer awarding some costs against the prosecution for examining the two witnesses. I am not satisfied that the trial court applied its judicial mind while observing that these two witnesses are not material witnesses since their names find place in the first information report itself.